SENTHILVEL GOUNDER Vs. VENKITACHALAM CHETTIAR

JUDGEMENT

(1.) THE petitioner herein purchased a house property in an auction held by the Official Receiver in insolvency proceedings on 25th October, 1969. He also obtained a sale certificate dated 25th November, 1969. Subsequently he approached the District Munsif of Udumalpet for delivery of possession. The District Munsif ordered delivery without notice to the respondent who was in possession of the property as a lessee from the Official Receiver presumably under Order 21, Rule 96 of the Civil Procedure Code and the petitioner took possession of the property purchased by him. Admittedly the respondent's lease will expire only on 4th September, 1970. The respondent, the tenant under the receiver and whose tenancy continues up to 4th September, 1970 filed an application before the same District Munsif, under Order 21, rules Order 21, rule 100 and 101 of the Code of Civil Procedure for re -delivery of possession of the properties delivered in E.A. No. 1970 of 1969 on 8th December, 1969. The respondent contended before the learned District Munsif that the lease in his favour has not expired, that the order directing delivery without notice to him was invalid and that the possession of the property should be re -delivered to him. The learned District Munsif held that the respondent was entitled to get re -delivery of possession of the properties. The petitioner questions the correctness of the order passed by the learned District Munsif directing re -delivery of possession.

(2.) THE learned Counsel for the petitioner contended that the Court below had no jurisdiction to entertain the respondent's petition for re -delivery under Order 21, Rules 96, 100 and 101, Civil Procedure Code, and that the proper remedy for the respondent was to approach the Insolvency Court under Section 4 of the Provincial Insolvency Act. The learned Counsel contends, that the application filed for re -delivery by the respondent is not maintainable on the execution side of the lower Court. It is well established that the proper Court to adjudicate on matters relating to the sale held by the Official Receiver is the Insolvency Court and not the Court acting under Order 21, of the Civil Procedure Code. But curiously the petitioner has himself moved the learned District Munsif on the execution side under Order 21 of the Civil Procedure Code to get delivery of the properties in pursuance of the sale certificate given in his favour by the Official Receiver. If his contention that the provisions of Order 21, cannot be invoked in relation to a sale held by the Official Receiver is to be accepted, then on the same reasoning it must be held that the earlier orders passed by the learned District Munsif on his petition for delivery would also be without jurisdiction.